BC Personal Injury Lawyer: Vancouver, Abbotsford, Surrey

Synopsis: New Brunswick Court of Queen’s Bench orders a wrongdoer (defendant) to pay the interest charged to an injured claimant that accrued in order to finance the cost of the lawsuit.  This doesn’t make this decision law in British Columbia at this time, but no doubt this issue will soon be addressed in BC’s Supreme Court.  (case:  Bourgoin v. Ouellette et al, N.B.R. (2d) TBEd. FE.013, February 6, 2009 [The New Brunswick Decision])

Full article:

Advancing a personal injury case almost always requires spending some amount of money.  The money spent to advance a claim/lawsuit is called disbursements.  How much money needed depends on the case.

Example #1: a car accident case where fault is in dispute and the injuries claimed are a head injury, the amount of disbursements will be very high – into the tens of thousands, and perhaps higher.

Example #2: contrast example #1 with a case where the injured person was rear-ended (i.e. fault is then not in dispute), and the injury was a neck strain that healed within 12 months.  The second example would require a lot less in disbursement money.

What are examples of disbursements?

• office expenses (photocopying, courier, court filing fees, fax charges, mileage, etc.).  These are relatively minor compared to the expert costs.
• expert costs – this is where the costs add up.  To prove injuries and the future of those injuries, medical opinions are needed.  Doctors don’t provide medical opinions for free.  Other experts could include engineers, occupational therapists, economists, and others, depending on the case.
• MRI / CT scans and perhaps other tests.

The problem faced by many injured persons the lack of money to pay for any disbursements.  Most people don’t have a spare $2,000 let along tens of thousands lying around to pay for a lawsuit.  Lawyers may advance the funds to pay for these disbursements (Dykstra & Company will in most cases – especially if fault is not in dispute).  However, lawyers often have to borrow money to pay for their clients’ disbursements.  This means the lawyers then charge interest to their clients (because the lender charges interest to the lawyers).

The New Brunswick Decision ordered the defendant to refund the interest charged to the plaintiff incurred to finance disbursements*.  The interest rate was 2.4% compounded monthly.  The Court found that the plaintiff had no other option but to borrow money to finance his disbursements.  The decision was based on the argument that in order for the plaintiff to have access to justice and enforce his rights, he had to borrow the money.

Access to justice is an ongoing issue in British Columbia, and no doubt other provinces.  This issue came to light in the media when the case against the BC ferries settled before trial because the cost of going to trial was too much for the plaintiffs.

Of course a similar decision in British Columbia wouldn’t address the high cost in BC to actually pay the trial fees.  That’s a separate issue – an issue that our provincial government must address.  However, if the BC courts decided the issue similarly to The New Brunswick Decision, in my view, access to justice would be improved.

*Note: this decision doesn’t mean that wrongdoers in British Columbia must pay the interest charged to finance disbursements (as of this article date).  However, courts in one province often consider decisions of courts in other provinces.  The New Brunswick Decision may be persuasive when this issue is addressed in the BC Supreme Court – time will tell.

Access to justice is an ongoing topic in British Columbia for persons injured in car accidents with ICBC claims.  Access to justice includes the cost and how long it takes to solve disputes.  The cheaper and speedier, the better.

A few steps the BC government has taken is to offer a variety of litigation options.

If you get hurt or have a non-family matter lawsuit (family matters have their own rules and court options), you have 3 procedural options in the Supreme Court of BC and a 4th option by going to Small Claims Court.

I’ll describe the 3 Supreme Court options first.

1.    You can opt for the regular procedure – which is the default process. This process generally takes the longest and is the most costly.  Typically, cases that are potentially greater than $100,000 proceed in this manner.

2.    You can opt for a Rule 66 expedited litigation. When a Supreme Court action is filed under Rule 66, the action will typically get a quicker trial date (usually within 8 months of filing).  However, the maximum number of trial days under this rule is 2 days.  Other ways Rule 66 actions contain costs is:

• Limiting examinations for discovery (a pre-trial event where the lawyers ask questions to all parties to the action) to 2 hours for each party.
• Maximizing the costs payable by the unsuccessful party to $6,600 (this amount could be more in the event special or double costs are ordered – a topic beyond the scope of this article).  Cost limitations can be good and bad – essentially it limits the risk for paying costs for all parties.
• Not permitting by right interrogatories.  Interrogatories are written questions put to a party who then answers them in writing.
• Jury is not an option.

3.    The third option in the Supreme Court is opting for Rule 68 expedited litigation. Rule 68 characteristics are as follows:

• A jury is not an option (reducing the cost).*
• Examinations for discovery are not a right. This means you don’t have to answer questions from the other side’s lawyer before the trial.
• There is no maximum number of trial days (an flexibility advantage to Rule 66 actions.

One limitation of Rule 68 is that the action must be under $100,000.  Now the amount of an action isn’t always readily apparent – especially ICBC claims and personal injury actions.  Therefore, there’s no absolute restriction to $100,000.  However, $100,000 is a guideline when deciding to file under Rule 68..

An obligation that is unique to Rule 68 is that summaries of what witnesses will testify about must be prepared and provided to the other party.

4.  The fourth litigation option is Small Claims Court in the Provincial Court of BC. Small Claims’ primary limitation is the maximum amount that it can award is $25,000.  Therefore, if there’s a possibility a case is worth more than $25,000, Small Claims isn’t the best option.

However, if a case is certain to be less than $25,000, Small Claims is a viable option for the following reasons:

• There are no examinations for discovery (usually beneficial for an injured person) because it keeps the costs lower.
• Trial dates are granted fairly quickly.
• Very little risk of costs.  There is a minimal costs provision in the Small Claims Rules – but the amount and occasion to award them are minimal.  Again costs is a comprehensive subject beyond the scope here.  No costs can be good or bad – depending on the outcome.  However, with no costs available, the risk to all parties is minimized.
• If you don’t have a lawyer, the Small Claims process is easier to navigate than the Supreme Court of BC process.
• A jury is not an option (again, this contains the cost).*

However, the Small Claims process requires that all parties attend a Settlement Conference presided over by a Provincial Court Judge.  These sessions are mini mediations – what is said is off the record except any further orders made by the presiding Judge.  Many cases settle at these conferences – likely because an actual judge who is proactive states what is a possible outcome.  Note that the judge who is at the Settlement Conferences don’t preside over the trial (if the matter doesn’t resolve).

I’ll conclude by making a comment about juries.  Juries add cost to a trial.  However, juries can be a very good way to decide a case and do justice for an injured person.  In fact, because juries decide a trial right away after the trial, they can speed up the process.

Recently ICBC set out the following top 5 things to do after a car crash (source: ICBC’s website – click here to review it).  What follows are our comments on ICBC’s top 5 things to do.

1.    Stop at the scene: If it’s safe to do so and you aren’t injured, pull over to the side of the road so you don’t block traffic and can safely exchange information with the other parties. If you can’t get to a safe area to get out of your vehicle, then stay in it until assistance arrives.

2.    Call 911: Your personal safety and well-being is most important. If you or others are seriously injured call 911.

3.    Summarize the scenario: ICBC’s new claims cards, available at any Autoplan broker or ICBC Claim Centre, will remind you of the important information you’ll need to record at the scene, such as the date, time and location of the crash, the contact information of others involved, their vehicle’s make, model and licence plate number and insurance policy information. The card also allows you to sketch the crash scenario including the directions of travel and any nearby road signs or traffic lights. [You can get a copy of ICBC's new claim card here.]

4.    Gather additional information: Make sure you get contact information for any witnesses. Pictures can be more powerful than words. If you have a cell phone camera or a disposable camera in your glove box, take photos of the crash scene and the damage done to vehicle(s) or property.

5.    Call Dial-A-Claim: Call ICBC’s Dial-A-Claim.  In the Lower Mainland call 604-520-8222; elsewhere in B.C. or outside call 1-800-910-4222. ICBC recommends you try and report the crash as soon as you can.  The claims representative will capture the details of the crash and tell you if you need to visit a claim centre or an autobody repair shop. If you’ve been injured, your wellbeing is the most important thing – you can ask a friend or family member to report the incident on your behalf. Once the claim has been reported, you can contact us later, when you’ve recovered.

I have three comments about ICBC’s top 5 things to do after a car crash.

First, if you have even the slightest discomfort, see a doctor before doing anything else.

Second, you have the right to see a lawyer before you make your claim to ICBC.  Yes, it’s a good idea to make a claim shortly after the accident; however, you have the right to see a lawyer before you do and a week or two delay will not compromise your claim.

Third, if a friend or family member reports your claim via Dial-A-Claim, ensure that whoever reports the claim says they are a friend or family member.  The reason for this is if the initial report is inaccurate, you can explain why.

I have four comments about the ICBC Claims Card.

First, if you’re hurting and filling out the ICBC Claims Card causes you discomfort, let the authorities collect the information.  You just focus on not aggravating your injuries and getting medical help.

Second, if you’re capable of completing the card, don’t restrict your comments to the spaces provided.  Write on the back side or another piece of paper.

Third, if the police show up, discuss your notes of how the crash happened with the police officer(s).  If your report differs from the police report, then there’s a difficult discrepancy to solve.

Fourth, if you’re injured, when able to do so, note down your injuries or have someone do it for you.  Be sure to be thorough and descriptive when reporting your injuries, pain, and discomfort to all medical persons who treat you.

What if the person who causes your crash in British Columbia doesn’t have any or enough insurance through ICBC to pay for your accident’s harms and losses?

Then you can access the insurance coverage provided through ICBC’s Autoplan called underinsured motorist protection, usually referred to as UMP.  Fortunately many British Columbians and motorists/passengers/cyclists/pedestrians in BC automatically have $1 million in UMP coverage.  Some persons have $2 million in coverage, depending on your coverage.

Who has the minimum $1 million UMP coverage?

1. all persons in a vehicle for which the owner purchased through ICBC the universal compulsory insurance coverage through ICBC (“ICBC coverage”). Essentially, any vehicle for which the owner bought the minimum vehicle insurance coverage in BC;
2. the individual owner or renter of the vehicle that has ICBC coverage;
3. an assigned corporate driver;
4. all holders of a valid British Columbia driver’s licence;
5. all members of the household of an individual set out in 2, 3, and 4 above.

As you can see, most people in an accident in BC will have UMP.  This information is from section 148.1 of the Regulation to the Insurance (Vehicle) Act.

Who has $2 million UMP coverage?
You can get an extra $1 million in UMP coverage from your auto insurance broker where you buy your basic auto insurance.  Just let them know.  The first $1 million in UMP is included in your auto insurance policy.  The second $1 million in UMP will cost you $25 per year.  If you buy the $2 million policy, it covers the following persons if injured by an underinsured motorist?

1. you no matter which vehicle you are in;
2. all the occupants in your vehicle;
3. members of your household (not in vehicles they own); and
4. you and your household members when injured as a passenger or cyclist.

Note that UMP is not available in provinces or U.S. states where the right to sue and recover damages for injury or death caused by a vehicle accident is barred by law.  This means in most no-fault provinces or states UMP is not available.  Have your insurance broker provide you a letter stating whether UMP will apply in the provinces or states you plan to visit.

Most safety features in vehicles recent years were designed to help protect from injury when a car accident happens.  However, thanks to technological advances, some vehicles are being outfitted with features that help avoid a car accident in the first place.  This new generation of safety features is frequently referred to as Intelligent Vehicle Safety Systems (IVSS).

The new Volvo XC60 will feature City Safety, Volvo’s newest technology designed to avoid lower-speed collisions.

City Safety will work up to 30 km/h.  City Safety has laser sensors that monitors the road ahead and assesses the speed of other vehicles up to 13 feet ahead.  When it’s time to slow down or stop, City Safety automatically applies the brakes.

Volvo reports that 75% of all accidents take place up to speeds of 30 km/h and that half of drivers in these accidents did not brake at all before impact.  City Safety will benefit by either totally avoiding a car accident or reducing the impact speed.

Mercedes developed Distronic and then Distronic Plus which is a series of radar sensors all over the car that measure the how far cars or other objects are in front and on the sides.  When the car gets too close to an object, Distronic triggers either the brakes or accelerates in order to maintain or minimize a set distance.  If a collision is about to happen, the driver is alerted by a visible and audible signal.

Toyota developed its Intelligent Transport Systems (ITS) depends on other vehicles, pedestrians, stop signs, traffic lights, and other infrastructure be outfitted with transmission devices.  These transmission devices communicate with moving vehicles.  When a moving vehicle gets too close to a transmitter, the vehicle alerts (audio and visual) the driver and automatically slows down or stops.  Obviously ITS requires other car makers and government to use the universal transmitters.

Ford is approaching car accident avoidance similarly to Toyota with its Vehicle Collision Avoidance Systems.  Ford’s system relies on transmitters built into road infrastructure (traffic lights and signs etc.) and other vehicles.  When vehicles get too close or are likely to go through a traffic sign/light, the sensors alert the driver and slow or stop the vehicle.  Again, this system requires universal application with other vehicles and road infrastructure.

Until recent years vehicle safety was about preventing and minimizing injury when an accident occurred.  No doubt injury prevention developments have saved many lives and minimized many injuries; however, in recent years vehicle safety with the use of on-board computers is launching to the next level by working toward avoiding accidents altogether.

Disclaimer:  I have not driven nor own any of the above-mentioned vehicles.  The information was obtained from the car manufacturers themselves.  I was not paid nor endorsed in any way to write this article.  This article is intended to be informational only.

Short answer: not very private – especially content created after you were injured.  You may be forced to provide some or all your Facebook pages to the other side – even if you have private settings.  In some instances, (factors set out below), you may even be forced to hand over your computer hard drive to the other side.

In February 2009 the Superior Court of Justice of Ontario ruled that any Facebook pages “that relate to any matter in issue in an action” must be disclosed to the other side (Leduc et al. v. Roman http://www.canlii.org/en/on/onsc/doc/2009/2009canlii6838/2009canlii6838.html).
Although Ontario court decisions aren’t binding on British Columbia courts, I suspect our courts will go in a similar direction.

In Chapter 3 of my book “BC Auto Injury Book: 9 Ways to Protect Your Claim” I addressed online Web pages that are available to everyone on the internet.  Now, you also need to review and consider all your private internet pages.  In fact, if you’re in a lawsuit, your entire computer hard drive is vulnerable to production.

In the Leduc case the Ontario Court concluded that it is reasonable to infer that social networking sites likely contain some content relevant to the issue of how a plaintiff has been able to lead his or her life since the accident.  If the other side isn’t satisfied with the internet pages disclosed, they can apply to the court for full production of every internet page.

Not every party to a lawsuit will have to produce their social networking internet pages.  In fact, I suspect the law will develop in this area in a fashion where it is difficult to predict whether a court will order a party to produce.  Consider the requirement that a document (such as a Facebook page) must relate to any matter in issue in an action.  What this means is if information on a Web site sheds light on something you’re claiming for – such as loss of enjoyment of life or loss of future income, then you must disclose it.  For example, if you say under oath at an examination for discovery, that you couldn’t play volleyball since your car crash and then there’s a photo of you playing beach volleyball after your car crash posted on your site – the other side will want that photo.

The tricky part for the other side is knowing whether your private Facebook pages are relevant.  That’s why the Leduc decision in Ontario is so important – it concluded “that it is reasonable to infer that social networking sites likely contain some content relevant to the issue of how a plaintiff has been able to lead his or her life since the accident.”

Another example: suppose your job required you to sit for 7 hours a day in front of a computer, but you claim your car crash injuries prevent you from doing your job.  Then suppose the other side suspects that you use Facebook 7 hours per day at home.  You could see how your Facebook use (computer use) could be sought by the other side).  Brain injury cases will also prompt defendants to seek hard drives to see what kind of capability (writing, communicating, etc.)  a brain injured plaintiff can do.

The second example is important because many jobs require solely working on a computer.  In cases where an injured person claims for loss of future income because they can’t work on a computer, the other side will routinely want the injured person’s entire hard drive to inspect computer use.

I can see how one might conclude frequent personal computer use would mean a person can perform a computer job.  However, I caution and would argue that personal, passive computer use is different than working on computers in the workforce.  Naturally every job and personal use will be different.  Again, when these issues arise in a claim – expert opinions about intensity and ability may be welcome to determine whether personal, passive computer use means an injured person can be employed working on a computer.

These two examples illustrate a distinction the BC courts have made to date (see Bishop v. Minichiello (http://www.canlii.org/en/bc/bcsc/doc/2009/2009bcsc358/2009bcsc358.html for full discussion) – hard drives as a filing cabinet vs. being a document.  This distinction is important because you must produce relevant documents, but you typically don’t have to produce filing cabinets.  To date, if your computer use is relevant, then you may have to hand over your entire hard drive.  If it’s the content on your hard drive that is sought (i.e. e-mails, Facebook pages, etc.) then you need to provide a list of the relevant documents on your hard drive (not the entire hard drive).  If the other side has good reason to believe (and can show) that a party didn’t disclosing all relevant documents, they can ask the courts for some way to ensure all documents are disclosed – and that my include handing over an entire hard drive.

Fortunately our courts also recognize that computer hard drives contain lots of personal information, most of which is probably not relevant in an injury action.  The common argument against disclosing an entire hard drive is it violates privacy rights – it’s akin to a search (unreasonable search and seizure is a protected right under the Canadian Charter of Rights and Freedoms).  In the Bishop case, the defendant in a personal injury action wanted the plaintiff’s hard drive to inspect computer use (specifically Facebook usage) during a specific hours each day.  The injured plaintiff claimed fatigue affects employment.  The defendant, therefore, wanted to see whether the plaintiff was on Facebook between 11 pm and 5 am.  The Supreme Court of BC considered the Facebook pattern use relevant and ordered the plaintiff’s family computer hard drive disclosed.  However, only the data for the stipulated hours and Facebook use was to be extracted by an independent computer expert chosen by both the plaintiff’s and defendant’s lawyers.

The area of electronic document production is one that is, and I suspect, will continue to be very case specific.  For every case that orders production, there will be cases that don’t order production.  That said, to date, some of the relevant factors the British Columbia and/or Ontario Courts considered when deciding production of private Facebook pages and/or hard drives are as follows:

1.    How relevant are the documents?  This is fundamental.  If there is only a slight chance that a few of thousands of documents may be relevant – disclosure is more unlikely.

2.    Relevancy vs. time, expense, and confidentiality.

3.    Facebook: courts may consider the number of “friends” who have access to your Facebook page – in Leduc, the court says the fact the plaintiff had 366 “friends” with access showed that the plaintiff “didn’t have a serious expectation of privacy”.  The court doesn’t say how few would infer greater privacy – but the point is the number of friends has some (perhaps very little) relevancy.

4.    Scope of the request – does one side want everything for a fishing expedition (hoping to find something relevant), or is the request narrow and more precise (which is less intrusive to the party having to produce)?

5.    Nature of the claim – consider the photographs that could be extracted and used.  The claim for “loss of enjoyment of life” is almost always claimed in personal injury cases, and it opens the door wide open to disclosing social networking pages and information created since an injury.

6.    Can the information be extracted by an independent expert who can restrict extraction to relevant information (i.e. a particular user or particular types of documents)?  The more that hard drive content / data / patterns can be extracted with precision, the more likely a court (in my view) will order production.

7.    Consider s. 8 of the Canadian Charter of Rights and Freedoms: is the production order sought more a search and seizure rather than disclosure of relevant documents?  If so, production is not likely.  Civil lawsuit rules don’t trump the Charter.

8.    Regarding hard drives – if the hard drive is found to be a filing cabinet, then a court will most likely not order it produced.  However, the metadata of the hard drive (i.e. computer use patterns) is a document which may be disclosed and produced.  Also, relevant documents on the hard drive must be disclosed.

At the end of the day, our courts in British Columbia encourage full disclosure so that both sides can accurately assess a case.  I suspect this approach will continue with electronic documents.

Facebook and hard drives aren’t the only data sought – parties seek internet browser histories, instant messaging histories, e-mails, etc.  You name it, opposing parties want it.  Obviously stopping all computer activity is nearly impossible these days.  So, what should you do if you’re an injured plaintiff?

1.    Stop all social networking activity – ideally deactivate your sites.  If you’re unwilling to do this, then at the very least be very, very aware of what you post and where you pose for photographs.  Obviously you can’t control what other people will post on their sites.  However, if you don’t have any social networking activity on your sites after your injury, then there’s no relevant information you need disclose.

2.    Mark every document about your lawsuit, after your car accident, on your computer with “Without Prejudice” – this will help protect those documents as privileged (privileged documents aren’t provided to the other side).

3.    If you’re keeping notes after your injury – indicate at the beginning of a file or folder that everything in the document and/or folder is created “in contemplation of my lawsuit” – this will help protect those files and/or folders as privileged.

4.    Tell your lawyer all your Web sites (private and public).

5.    From the date of your injury to claim resolution, conduct yourself online and on your computer as if the other side and a jury of 8 people will read or review what you create.  The exception to this is all your communications with your lawyer.

I’ll end on a positive note (from a claimant’s perspective).  Your online pages – especially the content up to your accident, can help your case.  Your social networking sites can paint a vibrant picture of your life, and if you can’t do some or much of what you did before, your social networking sites can help show illustrate your losses.

If you’ve been in a car accident, or suffered any type of personal injury that may result in a lawsuit, seriously consider deactivating your Facebook and other social networking sites.

The best thing to do is deactivate your sites.  Don’t delete them (you can’t destroy evidence); instead deactivate them so there can be no more activity on them going forward.  This way no “post accident” photos or material can be posted on a site in your control.

Why not just be careful about what’s posted?  Because although you may monitor what you post, the nature of social networking sites is you can’t control what others post/say on your site.

Also, be mindful of the photos you pose for, because in this digital age they could be posted online for the world to see with or without your consent.

Since Facebook launched, British Columbia courts and other courts across Canada are wrestling with what to do about Facebook pages and other interent pages – especially those with privacy settings.  The primary issue is whether a party in a lawsuit must disclose and/or produce private internet pages?

In my article “How Private are Your Private Facebook Pages?” I set out briefly what some Canadian courts are ruling about the production of private internet pages (as of May 2009).  Some decisions to date state if online content is relevant – even if private (i.e. privacy settings), it must be disclosed and produced to the other side.  This means your privacy settings mean nothing if you become involved in a lawsuit.

Your ICBC claim’s worth is based on what you’ve lost and the amount of harm done to you as a result of your car accident.  Your harms and losses are called damages.

Harms and losses form your claim from the time of your accident until as long as you are expected to suffer each particular harm and loss.  The following are the most common harms and losses:

1.                  pain and suffering and loss of enjoyment of life;

2.                  loss of past income;

3.                  loss of future earning capacity;

4.                  loss of opportunity;

5.                  out-of-pocket expenses (special damages);

6.                  cost of your future care; and

7.                  cost for help with your family responsibilities and your home.

This is not a complete list, but instead sets out the usual harms and losses.

What are these harms and losses and how are they calculated?

1.         Pain and suffering and loss of enjoyment of life.

Pain and suffering includes all your symptoms, pain, psychological problems, cognitive impairments, and emotional difficulties that were caused or materially contributed to from your car accident).  Loss of enjoyment of life is your limitations stemming from your symptoms, pain, psychological problems, and emotional difficulties.  For example, if you suffered a whiplash injury, your pain and suffering is your neck pain and headaches and perhaps back pain.  Your resulting loss of enjoyment of life is all the things you can’t do or can’t do as well or as frequently as you could do before your car accident.

The Supreme Court of Canada said in 1978 that money is awarded for pain and suffering and loss of enjoyment of life because “it will serve a useful function in making up for what has been lost in the only way possible, accepting that what has been lost is incapable of being replaced in any direct way (from the court decision in Andrews v. Grand & Toy Alta. Ltd. [1978] 2 S.C.R. 229.

In the Andrews case the Supreme Court of Canada put a maximum on the amount of money that could be awarded for pain and suffering and loss of enjoyment of life.  In 1978 the cap was $100,000.  As of December 2007, taking inflation into account, the maximum was $320,000.

Therefore, if you sustained X, Y, and Z injuries, the court will use previous cases of similar injuries as a guideline in determining how much to award you.  Since every injured person has unique circumstances as well as similarities to previous cases, the court will also consider your circumstances in coming up with a damages award.

2.         Loss of past income

For income loss stemming from car crashes, the income amount awarded by courts is what an injured person’s after-tax income would have been.  The injured person must prove the income loss.

Presently, the tax deduction is calculated by adding up the entire income loss and then assessing as if it was earned at the time of trial.  Then the previous tax year’s marginal tax rates are applied.  Consequently, if you were off work for more than one year, the tax rate applied may be higher than if your income was split up over the years you were off work.  However, if your income loss is not for a full year and you had other earnings, those other earnings are not added to the income loss amount.  This means that in this scenario your income loss deduction may be a lower marginal rate than all your earnings for that year warrant.

The only tax deduction available is the basic personal exemption.

3.         Loss of future earning capacity

Damages are awarded for loss of future earning capacity when there is a substantial possibility that injured persons will have less income-earning capacity in the future.  Because this award is based on the future, there is no way to determine it with mathematical certainty.  Therefore courts determine it using a best or informed estimate based on the medical, educational, and employment evidence.

Another way courts term this loss is a loss of capital asset.  The capital asset is the injured person’s ability to earn income.  Factors (from Brown v. Golaiy [1985 B.C.J. No. 31] the court can consider when determining this loss are as follows:

(a)        whether the injured person is less capable overall from earning income from all types of employment;

(b)        whether the injured person is less marketable or attractive as an employee to potential employers;

(c)        whether the injured person has lost the ability to take advantage of all job opportunities which might otherwise have been open had he [or she] not been injured; and

(d)       whether the plaintiff is less valuable to himself [or herself] as a person capable of earning income in a competitive labour market.

4.         Loss of opportunity

Generally this loss falls under the loss of earning capacity which is described above.  However, sometimes the circumstances in a case are such where an injured person’s loss is most accurately termed and considered a loss of opportunity.  Usually this loss is the loss of opportunity to work or develop a particular vocation.  An example from a British Columbia case is a triathlete whose injuries prevented her from entering the “very top rank” of professional triathletes (Bonham v. Smith [1998] B.C.J. No. 98) para. 42).

In order to prove a loss of opportunity, you must show a “reasonable chance of being successful” (Bonham para. 42).

5.         Out-of-pocket expenses (special damages)

From the time of your auto accident to the date it’s resolved you will almost certainly spend some money in some form or another as a result of your crash.  These out-of-pocket expenses form part of your claim as a special damage.

In order to receive money for your out-of-pocket expenses, you must show that the money was spent and it was reasonable to spend the money.  The following are expenses that can form part of your claim:

(a)        transportation/mileage to medical visits;

(b)        vehicle damage (if not already paid);

(c)        vehicle rental costs;

(d)       medical and rehabilitation expenses (i.e. physiotherapy, chiropractor, massage therapy, gym/pool memberships, etc.);

(e)        extra hospital costs;

(f)        dental expenses; and

(g)        cost for past help in your home and yard.

6.         Cost of your future care

At some point your claim will resolve by way of settlement or trial, yet you may still require treatment and care such as rehabilitation, fitness facility access, medication, equipment, and assistance, into the future.  In order to successfully claim for future care, you must prove that it’s a substantial possibility you will require it.

7.         Cost for future help with your family responsibility and home (aka loss of housekeeping capacity).

If your injuries prevent you from doing some or all you used to be able to do and did in and around your home and for your family, then you can claim for future assistance in and around your home.  Again the test for proof is that your loss of housekeeping capacity is a substantial possibility.

At the start of this article I said you are entitled to the applicable above damages if you aren’t 100 per cent at fault for your car crash.  If you are zero per cent at fault, then you receive all the damages assessed.  However, if you are found 40 per cent at fault, then once all the damages are assessed under the above applicable harms and losses, the court will reduce the amount by 40 per cent (or whatever per cent you were found at fault).

All personal injury lawsuits in British Columbia don’t proceed exactly the same and on the same timeline.  That said, most lawsuits have similar steps along the way.  Here’s some of the common steps you could expect when advancing a personal injury claim, including an ICBC claim.

The lawsuit process can last anywhere from 12 months to several years – depending on the nature of your injuries, how you were injuries, and your recovery, to name a few factors.

1.    Hiring a lawyer

Although you don’t have to hire a lawyer to advance a personal injury claim, it’s a good idea to at least talk to a lawyer about your case.  If you hire us, then we’ll ask you all about how you got hurt – the when, where, who, and how.

Once you us, we will need to collect information about you.  What’s collected depends on your circumstances, but expect that we’ll collect your medical information, ICBC file, employment file(s), tax returns, police file, and hospital records.  Again, there may be much or more that needs to be collected in order to advance, assess, and build your case.

From the time you hire us, we take care of all your paperwork and all communications with the other side, including ICBC.

2.   Filing your action in court

Depending on the amount of damages you’re entitled to, your case may be brough in the Supreme Court of British Columbia or Small Claims Court (up to $25,000).  Your action is filed in Supreme Court by filing a Writ of Summons followed by a Statement of Claim.  In Small Claims, your action starts by filing a Notice of Claim.  In both courts, the Statement of Claim and Notice of Claim sets out when your injury occured, how it occured, who is at fault and what they did wrong, your injuries, and your damages.

In Supreme Court, if you file an action, you are the plaintiff and the other party is the defendant.  In Small Claims, if you start an action, you are the claimant and the responding party is the respondent.

After your claim is filed in court, the defendants (ICBC if the defendant(s) were insured) will file a Statement of Defence. which answers your claims put forward.

3.   Document production

In British Columbia parties to a lawsuit must provide eachother relevant documents.  In a personal injury case this includes your relevant medical records and much of the documents set out in # 1 above.  Only privileged documents need not be produced – this includes communications with your lawyer and documents generated for advancing your lawsuit.

4.   Court applications

Sometimes we or the other lawyer may have a dispute about document production or some other procedural aspect of your case.  This isn’t unusual.  Rather than wait until trial, the us and the other lawyer(s) can go to court by way of an application that is heard by a judge.  Sometimes this procedure doesn’t happen at all, in other cases, many applications are made.

5.    Examination for Discovery

Before trial, we get an opportunity to ask questions of the defendant(s).  The answers are under oath and transcribed by a court reporter.  Likewise, the other party’s lawyer can ask you questions relevant to your claim – including asking about the documents that were provided.  An examination for discovery can last for 30 minutes to several days.  Most times for the plaintiffs, this lasts 2 to 4 hours.

Note that in Small Claims there are no examination for discovery.

6.    Offers to settle and negotiation

Usually, after examinations for discovery, one or both sides will make an offer for settlement.  Negotiations may ensue.  Often cases settle, sometimes they don’t.

7.    Mediation

Sometimes one or both parties propose a mediation.  Mediation is where all the parties meet in an “off the record” setting to negotiate.  A mediation is usually held at a neutral location such as a hotel conference room or similar facility.  A mediator presides over this event.  The mediator is chosen by consent of both parties’ lawyers.  The mediator has no interest in the outcome – she or he is there to act as a liaison between the parties and to facilitate negotiation.

8.    Preparing for trial

If the case doesn’t settle, then we put together your case for trial – preparing your witnesses and documents to present your case in court.

9.    Trial

Your trial could last for 1 day, or go many weeks, depending on the complexity and issues involved.  As the injured person, your case is put on first.  Each of your witnesses, including your doctors, if any, may be cross examined by the other lawyer(s).  The other side may or may not have any witnesses.  Typically you’ll know before hand if the other side has any witnesses.  Your trial concludes with closing statements made by all lawyer(s).

Your trial may be decided by a judge or a jury.  Note that a jury isn’t an option in Small Claims or some “fast-track” options in Supreme Court.  If a judge decides, it could take anywhere from a day or two to several months.  If a jury decides, it could take a couple of hours to several days.

10.   Finalizing your claim

If there is no appeal, you’ll receive your funds fairly shortly after a court decision. We’ll take care of the final paperwork for you and see that you get the compensation due from the court decision.

Have more questions?  Ask for our FREE book “BC Auto Injury Book: 9 Ways to Protect Your Claim” in hard copy.

Call us toll free 1.877.753.4793 or fill in the form to the right requesting our book.  Please include your address so we can mail it to you.  In the meantime you can read our entire auto injury book in our BC Personal Injury library.